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Signed Contracts_Twilight River Boar Docking LeaseMasterpiece on the Mississippi TO: FROM: SUBJECT: DATE: Michael C. Van Milligen, City Manager Don Vogt, Public Works Director River Boat Docking Agreement May 24, 2012 Dubuque katti AII- Americacity 1 ► 2007 INTRODUCTION The purpose of this memorandum is to recommend your endorsement of the attached River Boat Docking Agreement. DISCUSSION The attached River Boat Docking Agreement was developed by staff for large river boats wishing to use the City's large boat docking facility at the Riverwalk's Alliant Plaza. This particular agreement will allow the operators of the riverboat Twilight to use the Alliant Plaza Dock under the terms stipulated in the agreement. The agreement was developed and approved by City Attorney Barry Lindahl, Assistant City Manager Cindy Steinhauser, and Finance Director Ken TeKippe. The requisite insurance documents have been received and approved by Ken. ACTION STEP Your endorsement of the attached City of Dubuque Docking Agreement is requested. Attachment CITY OF DUBUQUE DOCKING AGREEMENT OWNER CUSTOMER NAME : City of Dubuque ADDRESS : 50 W 13th Street CITY; ST, ZIP-- = Dubuque,- Iowa NAME :Twilight Riverboat ADDRESS :River Cruises P-O- Box - 172 CONTACT : John Klostermann TELEPHONE : 563/589 -4348 FACSIMILE : 563/589 -4252 E -MAIL : jkloster @cityofdubuque.org CITY, ST, ZIP :Scales, Mound, IL. 61075 CONTACT :Carrie Stier TELEPHONE :815- 845 -2333 FACSIMILE E -MAIL carrie.stier(a riverboattwilight.com FACILITY RATES /CHARGES Port of Dubuque - Alliant Plaza Docking Facility No cash charge. The parties hereto agree that sole consideration shall be the economic benefit to the community surrounding the Facility derived from the passengers' visit to such community. DESCRIPTION /PURPOSE OF ACCESS /USE The Facility, will be utilized to embark and disembark passengers, to receive supplies and fuel aboard the boat, to off -load trash for proper shore side disposal, to perform maintenance work of a minor nature, and other such activities that are consistent with the operation of an up -scale overnight excursion vessel. 1. Basic Agreement: In consideration of the Rates /Charges referenced in the relevant box above, Owner hereby grants to Customer access to and the use of the Facility defined above, for the purposes described above. The grant of access herein is on a first -come first served basis and does not constitute a guarantee that the Facility will be available to the Customer at any particular time. Customer is encouraged to coordinate its use of the Facility with other users. Owner acknowledges Customer's Notice of Docking Dates, attached hereto as Exhibit A. In the event that Customer's Docking Dates change from dates provided in Exhibit A, Customer must notify Owner in writing of such changed dates no later than thirty (30) days from Customer's receipt of notice of changed Docking Dates. If such thirty (30) day notice cannot be provided, Customer must notify Owner of changed Docking Dates as soon as possible. 2. Safety and Notifications: Customer shall be responsible for ensuring that its employees, contractors and invitees comply with applicable laws and obey any written safety rules provided by Owner. Customer shall not intentionally interfere with other operations or create any danger or safety hazard at the Facility. Customer shall notify Owner if it believes there are any safety or suitability problems, and in such an event the parties agree to fully cooperate and resolve the same to their mutual satisfaction. Formal Notices shall be address ed to the Con tact defined above for each of the parties and may be given by e-mail, facsimile, or by mail. Notices will be deemed to have been received upon the production of a relevant receipt document. 3. Liability and Indemnity: Each party agrees to be responsible for, and indemnify .and hold harmless the other of and from (including legal fees and costs), any loss, damage, expense, claim, liability, suit, fine and /or penalty applicable to (i) such party's employees, contractors, invitees and guests, and(ii) the owned, leased or chartered vessels, equipment or other personal property of such party and /or its 041012ba1 employees, contractors, invitees and guests, howsoever caused and regardless of fault, which in any way arises out of or relates to the Facility or Customer's access thereto and /or use thereof. Each party agrees to waive any immunity from suit and /or exclusivity of remedy pursuant to any workers compensation act or similar law in furtherance of the foregoing indemnity for employee injury claims. For purposes hereof, any passenger of Customer shall be deemed Customer's invitee /guest but only while aboard Customer's vessel, and /or while embarking or disembarking Customer's vessel on Customer - provided equipment. With respect to all other matters, each party agrees to be responsible for, and indemnify and hold harmless the other of and from ( including legal fees and costs), all loss, damage, expense, claim, liability and /or suit to the - extent caused by its negligence `or` other legal `fault. - - — 4. Insurance: Customer shall maintain during the Term of this Agreement insurance as provided in the attached Insurance Schedule. Owner shall maintain during the Term of this Agreement Owner's membership in the Iowa Communities Assurance Pool or obtain general liability insurance with equivalent coverage. The parties shall exchange insurance certificates evidencing all of the foregoing insurances and conditions upon execution of this Agreement and from time to time thereafter, as may be requested. Should a party fail to maintain (or cause to be maintained) an insurance as required, if an insurance fails for any reason (including without limitation due to breach of condition or warranty), and /or if an insurer refuses and /or is unable to pay, the party required to maintain such insurance above shall be deemed a self- insurer thereof, accept and pay all claims which would have otherwise been submitted, and indemnify and hold .harmless the other of and from (including legal fees and costs) any loss, damage, expense, claim, liability, suit, fine and /or penalty resulting from such failure. 5. Utilities: If any utilities are available at the Facility and Customer elects to connect to and /or utilize such utilities during its visit, Customer agrees to be responsible for and to pay any and all connection and /or usage charges. 6. Refuse and Garbage Removal. Customer shall not store any refuse or garbage at the Facility for any length of time and shall make arrangements for the prompt removal of refuse and garbage from the Facility. If Customer fails to promptly remove refuse and garbage from the Facility, Owner reserves the right to prohibit removal of refuse and garbage upon Customer's docking at the Facility. 7. Term of Agreement: This Agreement shall commence upon its date of execution, shall have a term of one year, and shall, absent Notice from one party hereto to another party hereto sixty (60) days or more in advance of the then - current termination date, automatically renew for an additional one year term. 8. Governing Law. This Agreement shall be governed by the general maritime law of the United States or, if no general maritime rule of law applies, then by the laws of the state of Iowa. 9. Default. If Customer fails to comply with any of the provisions of this Agreement within seven (7) days after notice of noncompliance from Owner, Owner may terminate this Agreement. 10. Entire Agreement. This Agreement may be executed in counterparts and /or by electronic exchange of signatures, with all such counterparts deemed the same single agreement and signatures exchanged by electronic means deemed equivalent to original signatures. This constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, written and oral. This Agreement shall not be modified except through a writing signed by both parties. 2 DATED THIS / DAY OF 1/ Owner Authorized Sig attire Printed Name and Title Authorized Sign tare Printed Name and Title 014 Al